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U.S. Supreme Court hears constitutional challenge to portion of citizenship law

By Raju Chebium
CNN.com Correspondent

In this story: Government's arguments The Fiallo case Status of children Leveling the playing field Nguyen's story RELATED STORIES, SITES

WASHINGTON (CNN) -- The attorney for a U.S. citizen father challenging the constitutionality of a citizenship law told the U.S. Supreme Court Tuesday that mothers and fathers should be treated equally when trying to obtain citizenship for their illegitimate children born overseas.

VIDEO CNN's Charles Bierbauer reports the case and its history Play video (QuickTime, Real or Windows Media)

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Martha Davis, representing Vietnam-born Tuan Anh Nguyen and his U.S.-citizen father, Joseph Boulais, in Nguyen v. INS, said illegitimate children born to U.S. citizen mothers are automatically conferred citizenship.

"Our argument is that fathers should have the same right," Davis, an attorney with the National Organization of Women's Legal Defense and Education Fund, said during oral arguments.

At issue is Section 1409 of the Immigration and Nationality Act, which deals with out-of-wedlock children born outside the United States to one U.S. citizen parent.

Under the law, fathers need to take a series of steps before the child turns 18 to "transmit" citizenship, such as agreeing to support the child financially and proving paternity before a court.

Nguyen and Boulais contend that Section 1409 violates the Fifth Amendment's equal protection guarantees by treating mothers and fathers differently. They want the nation's highest court to strike the section as unconstitutional.

Government's arguments

Deputy U.S. Solicitor General Edwin Kneedler, said the law does not discriminate against fathers, arguing that Congress has to resolve any potential problems with the law the issue because the Constitution says the legislative branch has the power to decide which foreign-born person can be naturalized.

He also said the law imposes additional requirements for fathers because Congress felt the relationship between mothers and their children could be determined more easily.

"At the moment of birth, the mother has a legal relationship with the child. That is true in the U.S. and many other countries of the world," he said. "That is not true for fathers unless paternity is proven."

The Fiallo case

Justices did not address the Fifth Amendment issues during oral arguments.

They questioned Davis about a 1977 case, Fiallo v. Bell, in which the court ruled that illegitimate children of U.S. fathers do not qualify for "special preference immigration status."

In written arguments, NOW said a 1998 case, Miller v. Albright, was the most relevant precedent, because the court was presented with the same question -- and the same statute -- as in Nguyen.

In Miller, the justices did not rule on the constitutionality of Section 1409, but hinted that they might strike it down in the future if the U.S. citizen father was a named party in the case.

Status of children

Ngyuen served eight years in prison for sexually assualting a child. Now 31, the U.S. government wants to deport him to Vietnam

Justices also questioned whether foreign-born children should be considered "natural born" or "naturalized" under the U.S. Constitution, an important legal difference because the Constitution gives Congress the power to decide who can become a naturalized citizen.

Justice Ruth Bader Ginsburg, who said her grandson was born in Paris, France, to U.S. citizen parents, told Kneedler: "You would have a huge statelessness problem if you don't consider a child born abroad a U.S. citizen."

She also said that in the "bad old days" before 1934, Congress had passed a law giving citizenship to children born abroad to U.S.-citizen fathers, but not U.S.-citizen mothers. She asked if Congress could conceivably retool the law to resurrect that provision.

Kneedler, easing fears of such a reversal, said the courts would review any law that seeks to turn the clock to the "bad old days," adding such a law probably would violate constitutional equal-protection guarantees.

Congress progressively relaxed restrictions on men obtaining citizenship for their foreign-born children in 1940 and 1986, he said, as proof that men are not being discriminated against.

Justice Antonin Scalia said fathers have to prove their paternity if they want to be involved in the lives of their illegitimate children born within the U.S., too, implying that foreign-born children are not treated differently.

Leveling the playing field

Nguyen has lived in the United States since he was 6 but his American father did not claim citizenship for his son before the boy turned 18

Chief Justice William Rehnquist asked Davis the problems with increasing the requirements on mothers instead of deleting the additional procedures for fathers to level the playing the field.

Davis replied that such a move would remove the equal protection problem in the Nguyen matter, but leave untouched a fundamentally flawed law.

NOW, in legal papers, argued that the law is based on outmoded stereotypes that women are the primary caretakers of their children while fathers tend to be little involved in their children's lives.

Nguyen's story

Boulais was the primary caregiver of Nguyen, while his birth mother disappeared long ago, NOW's legal brief said.

Nguyen was born in Saigon, Vietnam, in 1969 to Boulais, a native of Hartford, Connecticut, and a Vietnamese woman who disappeared after his birth and never played a role in raising him, according to court papers. Boulais and his new wife, also Vietnamese, raised Nguyen.

When the North Vietnamese captured Saigon in 1975, Nguyen fled with his stepmother's family and later came to the United States as a refugee. He became a permanent resident of this country and has not returned to Vietnam since. He was raised in Texas, court papers show.

In 1992, Nguyen was convicted of two felony counts of sexual assault on a child and began serving eight years in a Texas prison.

Three years later, the INS began deportation proceedings against Nguyen, saying he had been convicted of aggravated felonies and crimes of "moral turpitude," according to the NOW brief.

In 1997, an immigration judge upheld the INS's decision. In his appeal to the Board of Immigration Appeals, Nguyen argued that he cannot be deported because he is a U.S. citizen, court papers show.

While the appeal was pending, Boulais got a DNA test that confirmed that he was Nguyen's father, and got a court ruling confirming that his paternity. By then, however, Nguyen was 28 years old.

After the immigration board rejected the appeal in 1998, Nguyen turned to the federal courts.

Nguyen, now 31, finished serving his sentence earlier this year and is now being held in an INS detention center in Houston, Texas, pending resolution of the case.

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